H. Candace Gorman on the Radio

H. Candace Gorman was recently featured on The Story, a radio program produced by North Carolina Public Radio. Check out WUNC's digital archive and listen to the program here.

A Digest of GTMO News:

1. AP via International Herald Tribune: "Life harsher for detainees in Guantanamo's newest prison unit"

The AP covers GTMO's newest facility, the maximum security Camp 6. The Article quotes Wells Dixon and Sabin Willett.

2. Toronto Star: "The View from Guantanamo Bay"

The Star covers conditions in Camp 6, with a special focus of the situation of Canadian prisoner Omar Khadr, who was captured at the age of 15.

3. Asharq Alawsat: "Missing Saudi Found in Guantanamo after 5 Years"

The family of a Saudi man who had been missing for five years discovers that he had been "disappeared" to Guantánamo Bay.

4. The Age (Australia): "Guantanamo a lawless prison: lawyer"

David Hicks' Australian attorney, David McLeod, calls it like he sees it and accuses the U.S. government of moral "bastardry."

- Adrian Bleifuss Prados

The Guantánamo Testimonials Project

We've added a new site to our Friendly Links list. The UC Davis Center for the Study of Human Rights in the Americas has launched the Guantánamo Testimonials Project.

In the words of the center:

...the goal of this project is to gather testimonies of prisoner abuse at this detention center, organize them by the source of the testimony and the type of abuse (physical, sexual, medical, legal, psychological, age-related, religious, national / ethnic, verbal, unspecified and en route) and post them on this site. The strength of these testimonies is considerable. Based on them, a number of distinguished individuals and organizations have called for the closure of Guantánamo.

The Case of Murat Kurnaz

Murat Kurnaz, a Turkish-German man and former Guantánamo inmate has written a book, soon to be published, about his experiences at the prison camp.

Although Mr. Kurnaz was deemed to be harmless shortly after his capture, diplomatic imbroglios and government inaction resulted in a nearly five years of imprisonment for the so-called "Bremen Taliban."

According to UPI, Germany's foreign minister may be forced to resign over this scandalous injustice. Of course, no resignations are forthcoming from any government officials on the American side for the ongoing travesty of Guantánamo.

In the United States official impunity holds the day.

- Adrian Bleifuss Prados

Worth a Read:

Joseph Lelyveld has an interesting article on Guantánamo in the February issue of the New York Review of Books.

Lelyveld observes:

None of those released from Guantánamo has received an acknowledgment that there appear to have been no reasonable grounds for his detention, let alone an apology for the years snatched from his life, let alone even a modest attempt at compensation. In fact, Congress has had the foresight to bar damage suits by former detainees. Whenever questions are raised about cases in which reasonable grounds for suspicion are hardest to detect—the teenagers, septuagenarians, and Muslim travelers in war-afflicted regions who, whatever their motives or sentiments, never had a chance to get training as soldiers or bombers—official spokesmen can be relied on to allude to damning material in classified files that cannot be disclosed without damage to national security.

A Note on the Kafka

After reading a post about H. Candace Gorman on Majikthise, Lawrence Krubner posted this reflection:

"Gorman doesn't yet know what one of her clients is alleged to have done, even though she's been his lawyer for some time. "

Seriously though, if you just change "Gorman" to one of the character's names, couldn't this sentence be straight from Franz Kafka's novel The Trial? A man forced to defend himself against charges he is never allowed to know? Lawyers who agree to help, also without knowing the charges? The parallels with the novel are surprising. Who would have thought a nation with a supposedly strong allegiance to the rule of law could end up in this situation?

In The Trial, a young bank employee is charged with an unstated crime and forced through an absurd bureaucratic process before his inevitable execution. Just as the Bush admnistration's manipulation of language can be described as Orwellian (see recent semantic acrobatics with the term "torture"), its approach to due process can rightly be described as Kafkaesque.

These days, a news search on "Kafka" or "Kafka-esque" will produce any number of articles and editorials on Guantánamo and the Bush administration's detention policies. Like Josef, the protagonist in Kafka's novel, hundreds of designated "enemy combatants" being held in George Bush's dungeons have never been charged with a crime. They live at the mercy of seemingly arbitrary authorities that will inexplicably release some prisoners after insisting for years that the government possessed secret evidence of their unspeakable crimes. Others, like Mr. Al-Ghizzawi, will continue to languish in Guantánamo into the indefinite future.

- Adrian Bleifuss Prados

On Alternet:

Alternet, the internet's progressive media digest, has picked up Diary of a Guantánamo Attorney, H. Candace Gorman's recent piece in In These Times.

Post Script:
The article has also been picked up by After Downing Street.

Stephen Grey on the Talking Dog

Stephen Grey, journalist and author of Ghost Plane: The True Story of the CIA Torture Program is interviewed in a recent post on the Talking Dog.

Grey's book sheds light on the clandestine air traffic behind the U.S. government's detention and rendition programs. Not surprisingly, the Guantánamo Bay base has been convenient stop for U.S. government "ghost planes."

Says Grey:

When Guantanamo Bay opened up, someone at the CIA told me that Guantanamo was just the tip of the iceberg-- that there was a much larger network of prisons, jails around the world associated with the rendition program.

But the question becomes how to investigate this, given its immense secrecy. An opening occurred when I heard of one plane involved in the rendition from Sweden. Then the trail was picked up. I found my own "Deep Throat" who could provide me with flight plans of the CIA jet, and then I was able to identify a fleet of planes, and could trace their involvement. The story, in fact, became following these planes, because with this data, we could prove (1) that the stories of renditions told by prisoners who were released or got lawyers at Guantanamo were true, as their accounts matched flight plans precisely, (2) by looking at a fleet of aircraft, we could show that it was the CIA itself doing these things, and (3) I spoke to some of the pilots, who confirmed that they in fact worked for the CIA.

An Exchange on Habeas Corpus

Speaking at the Senate Judiciary Committee's DoJ oversight hearings last week, Attorney General Alberto Gonzales made his curious views on habeas corpus quite clear:

SPECTER: Where you have the Constitution having an explicit provision that the writ of habeas corpus cannot be suspended except for rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees — aliens in Guantanamo — after an elaborate discussion as to why, how can the statutory taking of habeas corpus — when there’s an express constitutional provision that it can’t be suspended, and an explicit Supreme Court holding that it applies to Guantanamo alien detainees.

GONZALES: A couple things, Senator. I believe that the Supreme Court case you’re referring to dealt only with the statutory right to habeas, not the constitutional right to habeas.

SPECTER: Well, you’re not right about that. It’s plain on its face they are talking about the constitutional right to habeas corpus. They talk about habeas corpus being guaranteed by the Constitution, except in cases of an invasion or rebellion. They talk about John Runningmeade and the Magna Carta and the doctrine being imbedded in the Constitution.

GONZALES: Well, sir, the fact that they may have talked about the constitutional right to habeas doesn’t mean that the decision dealt with that constitutional right to habeas.

SPECTER: When did you last read the case?

GONZALES: It has been a while, but I’ll be happy to — I will go back and look at it.

SPECTER: I looked at it yesterday and this morning again.

GONZALES: I will go back and look at it. The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —

SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

GONZALES: Um.

Hat tip to Think Progress

- Adrian Bleifuss Prados

Join the Flotilla!

Amnesty International invites you to join the Guantánamo Flotilla, an animated online petition demanding that the Guantánamo Bay detention camps be closed.

Pick a vehicle of your choice (be it dolphin, jet ski or pirate ship) and sail to the Caribbean to make your voice heard. The petition ends on June 26, International day for the Protection of Victims of Torture.

- Adrian Bleifuss Prados

A View From Abroad

In the Australian journal Justinian Roger Fitch weighs in on the case against Rumsfeld, recent Guantánamo litigation, the status of José Padilla and other developments.

Our Man in Washington

By Roger Fitch Esq.

The war crimes complaint against outgoing Secretary of Defence Donald Rumsfeld and others – e.g. torture-enabling Bush “lawyers” – is going forward in Berlin, as I foreshadowed in my last post. The Center for Constitutional Rights has this report.

More evidence is emerging against Rumsfeld, as Salon reports. According to The Nation, a prosecution of Rumsfeld is not as farfetched as some may think. At the very least, he will need to be circumspect in future about travel to countries claiming universal jurisdiction over crimes committed in other places, such as: Germany, Belgium, Denmark, France, the Netherlands, Norway, Spain, Britain, Canada and New Zealand.

And who knows? Perhaps even a post-Howard Australia.

One of the proposed defendants in the German case is Department of Defence general counsel William Haynes II, who signed off on one of the most notorious “torture memos” prepared by Bush lawyers.

For over three years, George Bush has sought Senate approval for Haynes’ appointment to the Court of Appeals. At his last confirmation hearings, the nominee admitted assisting in the Al-Qahtani “interrogation” in Guantanamo, the same procedure in which Rumsfeld took an active part (see my post of August 3).

Yet only a day after Haynes was named in Germany for war crimes, Mr Bush, in his wisdom and arrogance, nominated him once again for the 4th Circuit Court of Appeals. And why not? Jay Bybee (snap), Haynes’ fellow accused in Germany, is already a Court of Appeals judge. He got on the bench before the Senate learned about his torture memo.

At least the German charges were quite widely reported. However, little publicity was given in Australia to a legal opinion released by Melbourne’s Human Rights Law Resource Centre. The centre’s press release implied that the Howard Government’s ministers, no less than Rumsfeld, are not safe from war crimes charges, because…

the US proposal to try David Hicks before a freshly constituted Military Commission contravenes Article 3 of the Geneva Conventions in that such a trial is not capable of being regarded as a fair trial at international law … such a trial would be in contravention of the Australian Criminal Code ... ministers are subject to the Australian Criminal Code; and … to knowingly counsel or urge that such a trial be conducted before a Military Commission constituted under the relevant US legislation would constitute a war crime under the Australian Criminal Code.

* * *

Back in the US, a proud member of the Guantanamo Bay Bar Association has spoken out in no uncertain terms. In a Huffington Post blog, Gitmo defence lawyer Candace Gorman let the government have both barrels and didn’t shy from the words “war crimes”.

Ms Gorman was particularly outraged that one of her clients had received repeat Combat Status Review Tribunals (the laughable replacement for proper habeas hearings). The practice in question has just been reported in the new study by Seton Hall Law School, No Hearing Hearings. It seems the prohibition against double jeopardy, as with so many quaint “traditional” legal concepts, is unknown to Bush lawyers.

Not wishing to leave anything to chance or the human decency of the military personnel who sit on tribunals, the government is providing detainees with second, and even third, CSRTs.

These are needed when detainees are unexpectedly found to be “No Longer Enemy Combatants”, the expression Judge Robertson called “Kafkaesque”. However, that shouldn’t be a problem since detainees can be subjected to multiple CSRTs until the desired result is achieved.

* * *

Thanks to other members of the Guantanamo Bar and National Public Radio we now have audio tapes of some of the CSRTs. Interestingly, they are for the six Bosnian-Algerians collectively forming the Boumediene case. That’s the case now before the DC Court of Appeals along with the Al Odah (Hicks) case.
The NPR link is valuable as it also links the documents, including translated Bosnian court decisions and orders that prohibited the extradition of the detainees, whom the US summarily abducted (sorry, rendered) from Bosnia, far from any battlefield.

The Boumediene appellants’ brief in the Court of Appeals has just been filed. The brief for the Al Odah appellees, incidentally the first merits brief in which David Hicks’ military counsel Major Mori has joined can be found here.
The Boumediene case is one of only two the government won in DC district court. Success in both was due entirely to their fortuitous assignment to the slavishly Bush-friendly judge Richard Leon.

There are 15 district court judges in Washington who have ruled on detainee cases. Judge Leon is the only one who has been prepared to say that dusky aliens, arbitrarily branded “enemy combatants” – a category utterly unknown to law – have no rights which, to quote the Dred Scott case, “a white man is bound to respect”.

Richard Leon (snap) was happy to make such a ruling, even though the United States Supreme Court sent the Guantanamo cases to DC district court in 2004 for the express purpose of hearing the habeas claims of the detainees.
To add to the problems of the Bush administration, a federal court in New York is edging closer to requiring the production of the infamous post-9/11 presidential “order” that purported to authorise the CIA’s use of “alternative” interrogation techniques. For the first time, the government has admitted that the order exists.

The existence of a presidential directive authorising “enhanced interrogation techniques” was first disclosed in FBI reports obtained by the ACLU in FOI actions. Now, it is hoped the court will order the production of the presidential edict to see if such things as “water-boarding” – clearly torture – were approved.

A federal court in Los Angeles has just struck down another post-9/11 presidential order, one which designated “terrorist” organizations. The judge ruled that president Bush’s designation of 27 groups and individuals as “global terrorists” violated the Constitution because it was made without any explanation of the basis or standards for the designations. Here’s The New York Times report.

The government no longer shies away from what the world calls torture. But, according to the Justice Department, it’s either got to be kept secret (so “terrorists” won’t, say, learn how to resist mock-drowning) or irrelevant – or both. Consequently, the government has resisted any defendant’s ability to disclose mistreatment. It’s too much information.

For the Bush lawyers, torture requires a new “don’t ask, don’t tell” policy: that’s the import of filings in the DC district court habeas cases of Bismullah and Majid Khan, as well as in the ongoing Padilla criminal case in Florida and the Al Marri appeal in the 4th Circuit.

In these and other cases the DoJ seems prepared to argue once again that, even if it occurs, torture doesn’t matter because “enemy combatants” have no substantive legal rights. As for the hearings themselves, the “military commissions”, with their limited DC Court of Appeals review, provide far fewer procedural rights than were accorded Nazi and Japanese war criminals tried by the US.

In the Padilla case, the government is claiming, not only that the defendant mustn’t be allowed to talk about his detention and possible torture, but the jury must not hear about it – it might prejudice jurors against the government.
In yet another Catch-22, the government, by stonewalling the production of “irrelevant” military medical records, is effectively mocking Padilla’s inability to prove he was tortured while in military custody.

In the Al Marri case, which is shaping up as the next Supreme Court showdown, the Bush lawyers want judicial sanction for the right to strip all non-citizens in the US – even legal immigrants – of their habeas rights. All that would be required is a (conclusive) finding by Bush or his Defence Secretary that the miscreants are “unlawful enemy combatants”.

A number of interesting amicus briefs have been filed in support of Mr Al Marri, including that of Bill Clinton’s attorney general Janet Reno and other ex-DoJ officials, some from Republican administrations.

Reno’s brief is here and others have been linked by Lyle Denniston on Scotusblog.

And what about the world’s most dangerous driver, Salim Hamdan? His case is on remand to Judge Robertson’s district court after the successful Supreme Court decision of last June. Lyle Denniston has noted a long list of constitutional issues being presented this time around.
An interesting amicus brief for Hamdan has been filed by retired Judge Advocates General and can be found here.

Another matter floating around like a bad smell may yet return to haunt the government. That’s the case of the German citizen Khaled El-Masri, who was kidnapped by the CIA in Macedonia and mistreated in Afghanistan before being released in Albania, of all places. A case of “mistaken identity”, the US claims.

Aziz Huq reports how El Masri, who was deported the last time he tried to enter the US, will be admitted soon for an appeal.

He is appealing against a “state secrets” dismissal of his civil damages suit against the US government, which was argued in the 4th Circuit Court of Appeals on November 28.

Dana Priest of The Washington Post has more on his case.

* * *

In a final irony, Democracy Now’s Amy Goodman has discovered that Donald Rumsfeld’s palatial estate on Maryland’s Eastern Shore was once (before the US Civil War) the property and workplace of Edward Covey.

He was a notorious slave breaker who operated a corrective service for other plantations having difficulties with their slaves.

One of his “visitors” was Frederick Douglass, the famous American abolitionist whose home, Cedar Hill, is now a museum in Washington.

The name of Covey’s establishment and Rummy’s estate? Mount Misery.

...more videos

Check out these videos from the Make Some Noise "Close Guantánamo" campaign.

Guantanamo Unclassified

Having overcome some technical difficulties, we can now post this much-requested YouTube video on Adel Hamad, another innocent man languishing in Guantánamo.

British MPs Take (a weak) Stand on Guantánamo

British lawmakers have issued a report urging Britain to pressure the U.S. to close its detention facilities in Guantánamo.

However, opposition MPs and human rights organizations have panned the report which calls for the closing of Guantánamo only as soon "as may be consistent with the overriding need to protect the public from terrorist threats." Although the report's authors spent only one day in Guantánamo and had no access to detainees, they assert that while abuses "almost certainly" occurred they are "unlikely to be taking place now."

Liberal Democrat MP, Sarah Teather dismissed the report saying the committee had been given "the VIP antiseptic tour." Amnesty International described it as a "missed opportunity" and attorney Clive Stafford Smith, the director of Reprieve, found the report to be full of factual errors and apparently based on a "show tour."

- Adrian Bleifuss Prados

H. Candace Gorman Talks to the Dog

The Talking Dog, one of the brighter lights of the blogosphere, currently features an extensive interview with Candace.

Here is a highlight:

The Talking Dog: Any thoughts on where the end game will go as far as the court system?

H. Candace Gorman: I don’t have much confidence in the courts (other than the Supreme Court) doing anything to help these men get their day in court. I think the men will continue to dribble out of Guantanamo. Now there is 395. Next month another 20 or 30 will be gone, and so on….

The Talking Dog: Do you have any thoughts on whether the recent Cindy Sheehan protest will do any good, or if any protests have done any good?

H. Candace Gorman: I am a strong believer in public protests. I am one of the attorneys representing protestors that were arrested in Chicago at the start of the Iraqi war. The case has been dragging on while we wait for the judge to rule on the city’s summary judgment motion, at first I was mad it was taking so long… now I couldn’t be happier. It will be hard to find a jury that will think my clients were wrong in protesting but I couldn’t say the same two years ago. Protests get people thinking and talking, that is always good. Cindy Sheehan is my hero. She has done more to bring attention to the travesty of the war in Iraq (and now the travesty at Guantanamo) than anyone else.The

Talking Dog: Is there any sense that public attitudes are shifting-- that the public is realizing that with over half of the detainees just summarily released, they are hardly the worst of the worst...

H. Candace Gorman: Those released are presumably "the best of the worst!" Unfortunately, so far, my clients are still in the "middle of the worst". Of course, this isn't really funny... The public attitude is shifting the more it learns... it's not so much a matter of time, as it is about facts slowly accumulating, realizing what is happening.

The Talking Dog: Well at least we're feeding the detainees lemon chicken and rice pilaf...

H. Candace Gorman: Funny you should say that; a couple of detainees have complained that they are gaining weight... they are being fed a high carbohydrate diet of late, which may be a new strategy to fatten them up to make them more complacent prisoners... or at least more lethargic.

The Talking Dog: Is there anything else that I should have asked you, or anything else that my readers or the public needs to know about Gitmo, the war on terror, the government's detention policy, or its regard for our Constitution?

H. Candace Gorman: We should all be very concerned about what this Administration is doing. This week the Pentagon announced it is looking at our bank records, not because they think anything criminal is going on but because they can learn stuff…They are listening to our phone calls and reading our emails… Every day there is something new and illegal that we learn they are doing… it is hard to keep up. Harder still to stop them from breaking the law. But we must.